Saks

Lila J. Saks and Marian King, beneficiaries of a testamentary trust (the Trust), appeal from a judgment entered on an order sustaining, without leave to amend, two separate demurrers to their second amended complaint. They sought over $2 million in damages, alleging negligence, breach of contract, and breach of fiduciary duty by both the attorney and real estate broker employed by the trustee. They claim the assets of the Trust were depleted through imprudent transactions. We conclude that Saks and King cannot maintain this action because the trustee is not a party and they did not pursue it in the department of the superior court exercising probate jurisdiction (probate department). Therefore, we affirm.

Factual and Procedural Background

On appeal after demurrers are sustained without leave to amend, we must treat the demurrers as admitting all material facts properly pleaded and all reasonable inferences which can be drawn therefrom. (Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 574-575 [ 207 Cal.Rptr. 853 ].) We therefore assume as true the following facts alleged in the second amended complaint.

Saks and King are two of the three income…